Shanti Devi vs Lakshmi Devi
2021 Latest Caselaw 16417 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Civil Misc. Appeal No. 1579/2020

1. Shanti Devi W/o Shri Rajendra Kumar, aged about 60 years, B/c Agarwal, R/o Swarupganj, Tehsil Pindwara, District Sirohi

2. Smt. Bhagwati Devi W/o Madanlal, aged about 59 years, B/c Agarwal, R/o Swarupganj, Tehsil Pindwara, District Sirohi

----Appellants Versus

1. Smt. Lakshmi Devi W/o Shri Girdharilal, B/c Agarwal, R/o Swarupganj, Tehsil Pindwara, District Sirohi

2. Shri Prabhuraj S/o Sablaji, B/c Rebari, R/o Vatera, Tehsil Pindwada, Sirohi.

                                                                   ----Respondents


For Appellant(s)            :     Mr. Surendra Surana
For Respondent(s)           :     Mr. J.P. Bhardwaj



              HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                       Order

28/10/2021

This civil misc. appeal under Order XLIII, Rule 1 of the Code

of Civil Procedure has been preferred by appellants against the

Order dated 28.07.2020 passed by Additional District Judge No. 1,

Abu Road, District Sirohi in Civil Misc. Case No. 15/2020, whereby

applications filed under Order IX, Rule 9 C.P.C. as well as Section

5 of the Limitation Act by appellants have been dismissed.

Brief facts of the case in short are that appellants preferred

the first appeal against the Judgment and Decree dated

25.05.2016 passed by Civil Judge, Pindwara, District Sirohi, before

the court of Additional District Judge No. 1, Abu Road, District

(2 of 4) [CMA-1579/2020]

Sirohi on 02.06.2016. On 11.12.2019, the appeal was dismissed

on account of non-appearance of the counsel representing the

appellants before the First Appellate Court. An application under

Order IX, Rule 9 C.P.C. along with application under Section 5 of

the Limitation Act seeking to condone delay in filing application

and setting aside dismissal of first appeal were moved by

appellants on 03.07.2020, which were rejected vide impugned

Order dated 28.07.2020 by the First Appellate Court on the

ground that no reason has been assigned for non-appearance of

the counsel representing the appellants on the relevant date i.e.

11.12.2019; appellants have filed the application for setting aside

dismissal of the appeal after lapse of 7 months, for which no

reasonable cause has been shown; affidavit of the counsel

representing the appellants has also not been filed in support of

reasons mentioned in the application. On the above grounds, the

First Appellate Court has dismissed the application as barred by

limitation. Being aggrieved by Order dated 28.07.2020, this

appeal has been filed by appellants.

Heard learned counsel for the appellants and perused the

material on record.

Learned counsel for the appellants has submitted that

reasons for non-appearance of the counsel representing the

appellants before the First Appellate Court were bonafide. He,

therefore, prays to restore the appeal, for which he is ready to

bear the reasonable cost.

On the contrary, learned counsel for the respondents has

submitted that in the present case, the provisions of Order IX,

Rule 9 C.P.C. are not applicable. There was no reason for non-

appearance of the counsel representing the appellants before the

(3 of 4) [CMA-1579/2020]

First Appeal Court on the relevant date. There is no ground to

condone the delay in filing the restoration application.

The controversy involved in the main suit relates to

immovable property. In the considered opinion of this Court, the

appellants cannot be deprived from getting decision of their first

appeal on merits on account of alleged act of negligence on the

part of the counsel representing them in not attending the court

proceedings on the relevant date. It is relevant to mention here

that in the year 2020, the Court proceedings in all over India were

adversely affected on account of outburst of pandemic of novel

corona virus (COVID-19).

The Hon'ble Supreme Court in the case of In Re

Cognizance for Extension of Limitation (SMW [C] No.

03/2020), due to the onset of COVID-19 pandemic, took suo

motu cognizance of the situation arising from difficulties that

might be faced by the litigants across the country in filing

petitions/applications/suits/appeals/all other proceedings within

the period of limitation prescribed under the general law of

limitation or under any special laws (both Central or State) and by

an order dated 23.03.2020, extended the period of limitation

prescribed under the general law or special laws whether

compoundable or not with effect from 15.03.2020 till further

orders. The order dated 23.03.2020 was extended from time to

time.

In the above circumstances, order impugned passed by First

Appellate Court dismissing the application under Section 5 of the

Limitation Act and consequently, the application under Order IX,

Rule 9 C.P.C. as barred by limitation, cannot be sustained. Hence,

the same is liable to be set aside and for the reasons mentioned in

(4 of 4) [CMA-1579/2020]

the application under Order IX, Rule 9 C.P.C., the same deserves

to be allowed.

Accordingly, the civil misc. appeal is allowed. The impugned

Order dated 28.07.2020 passed by Additional District Judge No. 1,

Abu Road, District Sirohi is set aside and the appeal preferred by

appellants bearing Civil Appeal No. 16/2016 (Smt. Shanti Devi &

anr. Vs. Smt. Laxmi Devi & anr.) is ordered to be restored to its

original number subject to depositing the cost of Rs. 5,000/- by

appellants to be paid to the respondents.

(RAMESHWAR VYAS),J

118-Inder/-

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